Here’s the latest.

Federal Circuit Backs PTO’s Broad Discretion Over AIA Challenges

Reported by Scott Graham at the National Law Journal

The Federal Circuit issued an order in Mylan Laboratories Ltd. v. Janssen Pharmaceutica denying a petition for a writ of mandamus to review the PTO’s institution decision. Scott Graham summarized the case where Mylan’s original petition to institute an inter partes review was denied by the PTAB. Mylan argued that the denial was improper under the AIA and violated its due process rights. Judge Prost, writing for a unanimous panel, disagreed.

“When a mandamus petition challenges a decision denying institution, the mandamus standard will be especially difficult to satisfy,” [Judge] Moore added. Because of the PTO’s broad discretion, there will be no mandamus review “except for colorable constitutional claims,” she held.

The Federal Circuit also rejected the due process argument and stated that Mylan could pursue litigation in district court.

The decision darkens the outlook for technology companies that argue the PTO is improperly limiting access to America Invents Act procedures known as IPRs, and instead forcing many cases to proceed in federal district court.

For more information, see our coverage.

Albright Rebuked Again by CAFC After Letting Second Transfer Motion Linger

Reported by Logan Murr at IP Watchdog

In an order issued late Monday, the Federal Circuit stayed proceedings in another case before Judge Alan Albright of the Western District of Texas. Logan Murr recapped the opinion and noted that the Federal Circuit went further than the previous instance by granting the writ of mandamus. Tracfone Wireless had submitted a motion to transfer and the motion was fully briefed by July 14th which the Federal Circuit highlighted.

The court noted that this case presented “strikingly similar circumstances” to the SK hynix case last month, which the CAFC held was an “egregious delay and blatant disregard for precedent.” Citing In re Google, No. 2015-138, 2015 WL 5294800 (Fed. Cir. Jul. 16, 2015), the CAFC explained that the trial court’s failure to act on a fully briefed motion for roughly eight months and its decision to proceed with discovery and claim construction “amounted to an arbitrary refusal to consider the merits of the motion.”

Judge Albright must now issue a ruling on the motion to transfer within thirty days while proceedings are stayed.

For more information, see our coverage.

Federal Circuit Will Weigh In On Government Shutdown Wage Case

Reported by Max Kutner at Law360

The Federal Circuit will hear an interlocutory appeal from the Court of Federal Claims concerning the failure to pay timely wages to government employees during a shutdown. Max Kutner covered the litigation which stems from the shutdown that started in late 2018. A class action lawsuit was filed, but the trial court had dismissed the case based on a provision within the ADA. However, Judge Campbell-Smith of the Court of Federal Claims recognized that the defense’s argument was strong enough to warrant appellate review.

“While the court is satisfied with the conclusion it reached in deciding that the ADA and the [Government Employee Fair Treatment Act] do not abrogate defendant’s obligations under the FLSA,” the judge said, “defendant’s opposition is substantial and supported by a plausible reading of the statutes and related authority.”

Affected workers may now opt-in to the class, but the proceedings have been stayed pending a decision by the Federal Circuit.